Law Commons^™

The Evolution Of Same-Sex Marriage In Canada: Lessons The U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage Rights, Christy M. Glass, Nancy Kubasek

Michigan Journal of Gender & Law

The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent …

Same-Sex Marriage And Federalism, Nancy J. Knauer

Nancy J. Knauer

The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the …

Happy Law Students, Happy Lawyers, Nancy Levit, Douglas Linder

Nancy Levit

This article draws on research into the science of happiness and asks a series of interrelated questions: Whether law schools can make law students happier? Whether making happier law students will translate into making them happier lawyers, and the accompanying question of whether making law students happier would create better lawyers? After covering the limitations of genetic determinants of happiness and happiness set-points, the article addresses those qualities that happiness research indicates are paramount in creating satisfaction: control, connections, creative challenge (or flow), and comparisons (preferably downward). Those qualities are then applied to legal education, while addressing the larger philosophical …

Fractured Bonds: Policing Whiteness And Womanhood Through Race-Based Marriage Annulments, Bela August Walker

Bela August Walker

In the hundred years before the United States Supreme Court declared miscegenation statutes unconstitutional in Loving v. Virginia, state courts decided thirteen recorded race-based annulment cases. This article presents a unified analysis of all race based annulment cases for the first time. Simultaneously public and private affairs, these dramas impacted far more than the individual couples or courtrooms, sending out shockwaves that reverberated beyond their points of origin. The results of the cases are startling and contrary to previous work on the subject. Using this unique set of cases, this article argues that while declaring these women “white” appears like …

Male Rape Victims: Breaking The Silence, Kiran Mehta

Public Interest Law Reporter

No abstract provided.

Cambodian Government Attempts To Combat Child Sex Tourism With Approval Of Anti-Trafficking Law, Cerise Fritsch

Public Interest Law Reporter

No abstract provided.

Marriage And Practical Knowledge, Robert F. Nagel

Publications

No abstract provided.

Introduction: The Florida Example, 32 Nova L. Rev. 515 (2008), Anthony Niedwiecki, William E. Adams

UIC Law Open Access Faculty Scholarship

No abstract provided.

Managing Radical Disputes: Public Reason, The American Dream, And The Case Of Same-Sex Marriage, Keith J. Bybee, Cyril Ghosh

College of Law - Faculty Scholarship

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers …

Documenting Gender, Dean Spade

Faculty Articles

This article provides an analysis of gender reclassification policies - policies that determine when an administrative agency will change an individual's gender marker on its records - in three contexts: policies related to placement in gender-segregated facilities, policies related to changing gender marker on ID, and policies related to the state provision of healthcare that is prohibited based on the gender on record for the person seeking care. The article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of …

Straight Acting, Dale Carpenter

Faculty Journal Articles and Book Chapters

This article explores the meaning of “straight acting,” a term one often hears among gay people. How, why, and by whom is it used? What purposes does it serve and what purposes does the reaction to it serve? How does its use by gays compare to the use of the term “acting white” by blacks? And, since this is a law journal, there's the necessary question: what is law's role in straight acting?

Rhetorical Atavism And The Narrative Of Progress In The Debate Over Marriage Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

UF Law Faculty Publications

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Publications

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Vanderbilt Journal of Entertainment & Technology Law

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Bare Justice: A Feminist Theory Of Justice And Its Application To Post-Genocide Rwanda, Megan M. Carpenter

Law Faculty Scholarship

Within this Article I seek to develop a feminist legal theory of justice, by questioning the ability of traditional legal strategies to facilitate justice and identifying underlying principles that contribute to a more inclusive and holistic form of justice. Secondly, I apply this theory to the situation of women victims of sexual violence in post-genocide Rwanda, in an effort to explore how these principles can contribute to a realization of justice that empowers women.

In Part II of this Article, I seek to develop a set of principles underlying a feminist reconceptualization of justice. This endeavour is a three-step process: …

The Geronimo Bank Murders: A Gay Tragedy, Joan W. Howarth

Scholarly Works

The Geronimo Bank Murders examines the intersection of homosexuality and capital punishment through the lenses of cultural criticism, queer theory, and legal analysis. The paper's subject is Jay Neill, who was executed in 2002 for murdering four people in a gruesome Geronimo, Oklahoma bank robbery in 1984, and for being gay. Current capital punishment doctrine permits, and perhaps even encourages, such results. The Geronimo Bank Murders recasts Neill's story, privileging homosexuality and gender, and uses that account to make three points, each based in law, culture, and politics. First, as a matter of legal doctrine, recognizing the error in using …

The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen

Faculty Articles

Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even …

Re-Interpreting The Criminal Regulation Of Sex Work In Light Of R C Labaye, Elaine Craig

Articles, Book Chapters, & Popular Press

In 2005, the Supreme Court of Canada revised the meaning of indecency under the Criminal Code. This was achieved by removing from its definition any reliance on the community standard of tolerance test. In R. c. Labaye the Court reinforced the notion that the focus of laws regulating sexuality should not be based on sexual morality and moral harm to society but rather on political morality and actual harm to individuals. The reasoning in R. c. Labaye should change the way that courts understand the prostitution-related provisions in the Criminal Code. In particular, a proper application of its reasoning suggests …

Instead Of Enda, A Course Correction For Title Vii, Jennifer S. Hendricks

Publications

In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical …

Intuition, Morals, And The Legal Conversation About Gay Rights, Suzanne B. Goldberg

Faculty Scholarship

When lawyers and judges converse in litigation, factual and legal analysis typically takes center stage. Yet, when the legal conversation turns to the rights of lesbians, gay men, and bisexuals, the ground shifts. Intuition and morals rationales often displace evidence-based reasoning. More specifically, arguments to limit the rights of lesbians and gay men tend to depend explicitly on intuition, and sometimes morality, in ways that contemporary arguments to restrict the rights of other social groups rarely do.

In addressing this dissonance, this essay has two central aims. The first is simply to observe the disproportionate openness to arguments based on …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Valuing All Families: An Introduction To The 2008 Santa Clara Law Review Symposium, Nancy Polikoff

Articles in Law Reviews & Other Academic Journals

The family has changed over time, as has the law concerning families and relationships. Thank goodness. Until recent decades, the law punished nonmarital sex, delineated separate spheres for men and women, and restricted the grounds for ending marriage. The sexual revolution, feminism, and the demand for divorce were the social phenomena that facilitated these changes. Today we take for granted that marriage is not the right dividing line for the rights and obligations of parents. We now must revise our laws to protect the economic security and emotional peace of mind of the full variety of today's families and relationships.

The Invisible Pregnant Athlete And The Promise Of Title Ix, Deborah Brake

Articles

The question of how law should respond to women who become pregnant, and whether to specially accommodate pregnancy or analogize it to other conditions, features prominently in virtually every area of sex equality law. In debates over women's equality in the workplace, for example, it has been the defining issue for the development of and debate over various models of equality in feminist legal theory. Until recently, however, the issue has been all but absent in debates and discussion about Title IX and its promise of sex equality in sports. This changed suddenly in 2007, when ESPN televised a program …

The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman

Articles

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

Articles

This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to express their …

What Counts As 'Discrimination' In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake

Articles

This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its …

Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth

Scholarly Works

As our day-to-day work lives make abundantly clear, a law faculty is a many-headed creature: an assortment of people with a variety of interests, strengths, foibles, personalities, and identities. Within the legal academy, a dominant consensus acknowledges that a strong faculty embodies diversity along multiple axes, including, for example, race, gender, religion, age, political ideology, research and teaching methodologies, and subject matter expertise.

The dean, however, stands alone, and stands above. Thus, issues of expectation, representation, comfort with and fear of difference operate quite differently when deans are selected, and when they do their jobs. The dean exercises authority over …

Tax As Urban Legend, Anthony C. Infanti

Articles

In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, …